Tuesday, February 28, 2017
The National Center on Elder Abuse asked various types of guardians to share their experience of being a guardian and offer advice for other guardians. We are delighted to share the first of two stories. If you would like to offer your story of being a guardian, please email us at email@example.com.
Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?" The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.
I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.
With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition):
The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves. Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future. The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....
The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."
While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?"
My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.
February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, February 27, 2017
The Washington Post ran a recent story about saving for retirement. Two-thirds of Americans aren’t using this easy way to save for retirement stress the importance of workers taking advantage of various workplace retirement accounts yet many fail to do so.
Fewer than one-third of Americans are saving money in their 401(k)s and other workplace retirement accounts, according to an analysis of tax records by Census Bureau researchers.
Although nearly 80 percent of Americans work for an employer that offers retirement programs — whether a 401(k), 403(b) or something else — only 32 percent of workers sign up for such accounts, according to a working draft of the study by Michael Gideon and Joshua Mitchell. The researchers studied W-2 tax forms from 2012 from 155 million American workers for their findings, which help shed light on just how ill-prepared many Americans are for the future.
The article discusses the importance of saving for retirement for the various age groups and notes that it's unlikely that those close to retirement have a realistic idea of what it costs to live during retirement.
Older workers ... are increasingly experiencing sticker shock when they realize just how much money they’ll need for retirement, said Manisha Thakor, a financial adviser in Portland, Ore. The most conservative calculations estimate Americans will need to have about eight to 10 times their annual salary saved for retirement, she said.
“By the time people see how much they need, it seems so horrific and out of bounds that they just freeze and do nothing,” she said, adding that she counsels clients to save at least 20 percent of their income toward retirement and other expenses. “They just throw their hands up and say, ‘What’s the point of even trying at this point? I’m so far off.’ ”
At the same time, people are living longer, which means they’ll have to save up that much more to help support themselves in their post-work years. She added, “Layered on top of both generations is the specter of student loan debt, which has now eclipsed credit card debt.”
The student debt referenced in the article is that taken on for their kids or grandkids.
What is the way to get more workers to take advantage of the offered workplace retirement plans? One idea in the article is automatic enrollment. Even though that may be successful, don't forget, "[i]n recent weeks ... Congress has moved to repeal Obama administration measures that allow states to automatically enroll workers ii retirement programs."
NPR had a good recent summary of the politics behind opposition to full implementation of fiduciary duty standards for investment brokers in providing retirement advice:
Over the past two weeks, the Trump administration has taken steps to delay and perhaps scuttle a new rule designed to save American workers billions of dollars they currently pay in excessive fees in their retirement accounts.
The Obama administration spent 5 years crafting the rule through the Labor Department. It requires that financial advisers and brokers act in their customers' best interest when offering them investment advice for their workplace retirement accounts. Firms must comply by April [2917 under the current rule].
As the commentary pointed out, early-on Trump pledged to support the interests of ordinary working Americans and to take on Wall Street:
In his inauguration speech, President Trump talked about giving America back to everyday working Americans. In one of the more memorable moments, the president said, "The forgotten men and women of our country will be forgotten no longer."
The fiduciary duty rule for investment brokers directly signals the tension between President Trump's pledge to working Americans and his career-long focus on big business.
AARP supports the rule, recognizing that the U.S. has an "under savings" problem. Distrust of investment advisers plays into the reluctance of ordinary Americans to engage in professionally-assisted planning for the future. Will AARP rally retirees to resist repeal or delay of the fiduciary duty rule?
For more, read or listen to Trump Moving to Delay Rule that Protects Workers from Bad Financial Advice.Trump Moving To Delay Rule That Protects Workers From Bad Financial Advice and White House to Investors: Put Savers' Interests First.
Warren Buffett has been counseling -- for years -- to avoid high fee "experts" for investment advice, recommending the use of index funds instead. See e.g. Newsday's "Warren Buffett Says Don't Waste Money on Investment Fees."
Sunday, February 26, 2017
CNN has published an investigative report on sexual assault of residents in nursing homes. Sick, dying and raped in America's nursing homes opens with these paragraphs "Some of the victims can't speak. They rely on walkers and wheelchairs to leave their beds. They have been robbed of their memories. They come to nursing homes to be cared for... Instead, they are sexually assaulted... The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them."
The report looks at a variety of issues and the failings of the system in responding to the attacks.
In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations -- or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.
The facts of the cases are hard to read but important in understanding the scope and significance of these crimes. The perpetrators were as young as teenagers or as old as the victims. Some were caregivers, others residents.
Rather than summarizing any further, just read the story. Nothing I can add here would give you the same impact.
Responses to the report from the National Consumer Voice for Quality Long Term Care and others can be accessed here.
Friday, February 24, 2017
Washington State Discusses Expansion of Limited License Legal Technicians to Estate & Health Care Law
In 2012, the Washington Supreme Court approved Admission to Practice Rule 28, which created a new program for authorization of "limited license legal technicians," also known as LLLTs or "Triple L-Ts." The express purpose of the program was to meet the legal needs of under-served members of the public with qualified, affordable legal professionals, and the first area of practice chosen was domestic relations. With that first experience in hand, in January 2017, the Washington State Bar Association has formally proposed expansion of the LLLT program to enable service to clients on "estate and health law."
As described in the Washington State Bar Association materials, this expansion will include "aspects of estate planning, probate, guardianship, health care law, and government benefits. LLLTs licensed to practice in this area will be able to provide a wide range of services to those grappling with issues that disproportionately affect seniors but also touch people of all ages who are disabled, planning ahead for major life changes, or dealing with the death of a relative." The comment period is now open on the proposed expansion.
For more about this important innovation, there was an excellent 90 minute-long webinar hosted by the Washington Bar in February 2017, with members of the Limited License Legal Technician Board explaining the ethical rules (including mandatory malpractice insurance), three years of education and 3000 hours of experience required for LLLTs to qualify. Now available as a recording, the comments from the Webinar audience, including lawyers concerned about the potential impact on their own practice areas, are especially interesting.
Many thanks to modern practice-trends guru, Professor Laurel Terry at Dickinson Law, for helping us to keep abreast of the Washington state innovation.
February 24, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Thursday, February 23, 2017
The Population Reference Bureau released a report examining the correlation between an elder's neighborhood and her health. http://www.prb.org/Publications/Reports/2017/todays-research-aging-neighborhoods-health.aspx explores the various issues involved in staying put and aging in place. Here is an executive summary:
Most Americans say they want to age in place in their own communities, but their health and ability to remain independent is shaped in part by their neighborhoods. Research finds that the social, economic, demographic, and physical characteristics of communities may influence older residents’ health and well-being.
Neighborhood characteristics affect people of all ages, but older adults—classified here as adults over age 50—may be affected more than other groups. Older people typically experience higher levels of exposure to neighborhood conditions, often having spent decades in their communities. They have more physical and mental health vulnerabilities compared with younger adults, and are more likely to rely on community resources as a source of social support. As older adults become less mobile, their effective neighborhoods may shrink over time to include only the immediate areas near their homes (Glass and Balfour 2003).
This report summarizes recent research conducted by National Institute on Aging-supported researchers and others who have studied the association between neighborhood characteristics and the health and well-being of older adults. This research can inform policy decisions about community resource allocation and development planning. A growing body of research shows that living in disadvantaged neighborhoods—characterized by high poverty—is associated with weak social ties, problems accessing health care and other services, reduced physical activity, health problems, mobility limitations, and high stress.
This area of research is challenging because lower-income people tend to live in disadvantaged neighborhoods and many detrimental neighborhood features cluster together. Disadvantaged neighborhoods often have more crime, more pollution, poorer infrastructure, and fewer health care resources—making it difficult to pinpoint which neighborhood feature is responsible for particular health outcomes.
Florida State University's Center for Innovative Collaboration in Medicine & Law and Big Bend Hospice have announced that they are co-sponsoring a National Healthcare Decisions Day on Thursday April 20, 2017 from 5-7:30 p.m. The event includes a resource fair, presentations, q & a and a copy of the 5 Wishes document.
National Health Care Decisions Day is actually a week, rather than a day, and it "aims to help people across the U.S. understand the value of advance healthcare planning. For 2017, NHDD will be a week long event, from April 16 to 22." More information about the health care decisions day, including how to get involved, is available here.
North Carolina Appeals Ct Declines to Recognize Pre-Death Cause of Action for Tortious Interference with Expectancy
An interesting decision addressing standing issues arising in the context of a family battle over an 87-year old parent's assets was issued by the North Carolina Court of Appeals on February 21, 2017. In Hauser v Hauser, the court nicely summarizes its own ruling (with my highlighting below):
This appeal presents the issues of whether (1) North Carolina law recognizes a cause of action for tortious interference with an expected inheritance by a potential beneficiary during the lifetime of the testator; and (2) in cases where a living parent has grounds to bring claims for constructive fraud or breach of fiduciary duty such claims may be brought instead by a child of the parent based upon her anticipated loss of an expected inheritance. [Daughter] Teresa Kay Hauser (“Plaintiff”) appeals from the trial court's 3 March 2016 order granting the motion to dismiss of [Son] Darrell S. Hauser and [Son's Wife] Robin E. Whitaker Hauser (collectively “Defendants”) as to her claims for tortious interference with an expected inheritance, constructive fraud, and breach of fiduciary duty as well as her request for an accounting. Because Plaintiff's claims for relief are not legally viable in light of the facts she has alleged, we affirm the trial court's order.
The succinct North Carolina opinion, declines to follow the logic of Harmon v. Harmon, a 1979 decision from the Maine Supreme Court, that addressed the "frontier of the expanding field" on torious interfence of with an advantageous relationship, by recognizing a "pre-death" cause of action.
Currently the North Carolina opinion is available on Westlaw at 2017 WL 672176; I'll update this post with a open access link if it becomes available.
Wednesday, February 22, 2017
Registration is now open for Stetson's annual Fundamentals of Special Needs Planning webinar (full disclosure, I'm the conference chair) scheduled for May 5, 2017.
Topics include :
- Becoming a SNT Administrator
- A Primer on Tax When Making Distributions
- Changes in Laws and SSA Regulations (you know, the POMS) and How Those Impact the Administration of Your SNT
- SNT Administrators: More Choices Than You Think
- Question and Answer Panel
The marketers of reverse mortgages often paint a rosy picture of how seniors will be able to draw on the equity in their homes to cover daily expenses, without risk of repayment before death. But details of these mortgages can be overlooked and as we've reported before, seniors can be surprised when terms and conditions create traps that can lead to foreclosure. However, from Florida, we're now hearing about cases where one of the simplest conditions -- the borrower continuing to live on site -- has become the subject of litigation.
“All of a sudden, we saw a spate of foreclosures where the mortgage companies alleged the seniors no longer lived in the home,” said Gladys Gerson, supervising attorney for Coast to Coast Legal Aid of South Florida’s senior unit. “This has been happening around the state.”
About a dozen similar cases reached Gerson and other attorneys at Coast to Coast, who have helped a growing number of low-income seniors fight and win dismissals despite aggressive lender litigation.
Florida is ground zero for seniors’ issues, but as the strategy has often proved effective, it’s likely to spread, according to defense attorneys. “If you see the volume of national advertising that’s geared to seniors, I can’t believe this is limited to Florida,” Corona’s father and partner, Ricardo, said. “The servicers are not even based in Florida, so I don’t see why they would limit themselves.”
Corona admits he didn’t expect a hard fight when he first reviewed El Hassan’s case, but court records show he was wrong. Over the last 10 months, the ongoing litigation yielded two hearings, 40 docket entries and attempts by both sides to collect attorney fees.
For more, read the full article, Foreclosure Litigation Strategy Takes Aim at Seniors, Attorneys Say.
Thank you to my colleague, Dickinson Law Professor Laurel Terry, for this source.
Tuesday, February 21, 2017
The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient. It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.
Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:
"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."
The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.
Under the statute, an "elderly individual" is defined as a "person 65 year of age or older."
In a Washington Post article on the conviction, a Texas attorney is quoted:
“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”
As we had blogged previously, D.C. city council had passed an aid-in-dying law that was signed by the mayor. Congress had 30 days to overturn it and as we also blogged previously, that at least one Congressman attempted to overturn it. The 30 days expired last week, and the law became effective on February 18, 2017. Washington, D.C., now seventh place in U.S. to officially legalize assisted suicide explains that this means that "D.C. became the seventh jurisdiction in the U.S. to legalize assisted suicide on Saturday, as the Republican-controlled Congress failed to block the law." Although there was a resolution from the House Oversight Committee, the resolution wasn't voted on by the House, so the law became effective.
Monday, February 20, 2017
George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World."
Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married. From the abstract:
Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit.
Thank you, Naomi, for this recommendation.
February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, February 19, 2017
Kaiser Health News ran a story recently about the increase in Alzheimer's cases amongst Latinos. 'Tsunami’ Of Alzheimer’s Cases Among Latinos Raises Concerns Over Costs, Caregiving citing to a recent report explains
Across the United States, stories [of people with Alzheimer's] are becoming more common, particularly among Latinos — the fastest growing minority in the country.
With no cure in sight, the number of U.S. Latinos with Alzheimer’s is expected rise by more than eight times by 2060, to 3.5 million, according to a report by the USC Edward R. Roybal Institute on Aging and the Latinos Against Alzheimer’s network.
Advanced age is the leading risk factor for Alzheimer’s disease and the likelihood of developing Alzheimer’s doubles about every five years after age 65. As a group, Latinos are at least 50 percent more likely than whites to have Alzheimer’s, in part because they tend to live longer, the report notes.
Caregiving (which we have blogged about on several occasions) is of course an important issue for all of us, but in particular, this story explains, "[a]bout 1.8 million Latino families nationwide care for someone with Alzheimer’s and other types of dementia. And while the Roybal report shows that Latino families are less likely than whites to use formal care services, such as nursing home care, institutionalized care is becoming more common among these families." Although there are some in nursing homes, limited resources factor in to the family's ability to turn to outside help for the elder with Alzheimer's.
The story covers the economics of care, available community programs, the importance of public education, and resources for the family.
When seeking support, the best place to start is at a local community group or center — a church, a nonprofit, a United Way office, or the local Alzheimer’s Association chapter, for example, Mizis said. These groups will most likely refer caregivers to a county’s Agency on Aging or a state’s Department of Aging.
Friday, February 17, 2017
As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward. Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact. A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:
"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."
In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.
"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."
The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away. Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice."
I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney." Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?
February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Thursday, February 16, 2017
20 New Yorkers from all different circumstances and backgrounds who have both exceeded life expectancy and who are disrupting commonly-held expectations of what it means to grow old.
Every few weeks, [the authors] introduce the story of a new person to our readers. You will meet a woman who cares for her 1-year-old great-grandchild, a man who was in prison for 30+ years and is trying to make up for lost time and an optometrist who has retired four times but keeps returning to work.
Isn't it time for a little positive news?
Wednesday, February 15, 2017
I think designing homes to allow a person to age in place is great (and of course, we have to make the community accessible as well). So I was interested in this article that discussed making the home accessible when the resident used a walker or wheelchair. Kaiser Health News ran the article, How To Make A Home Much More Friendly To Seniors Using Wheelchairs Or Walkers. The article offers this sobering statistic "Researchers at the Harvard center found that fewer than 10 percent of seniors live in homes or apartments outfitted with basic features that enhance accessibility — notably, entrances without steps, extra-wide hallways or doors needed for people with wheelchairs or walkers." Yet, "[a]bout 2 million older adults in the U.S. use wheelchairs, according to the U.S. Census Bureau; another 7 million use canes, crutches or walkers... [and] [t]hat number is set to swell with the aging population: Twenty years from now, 17 million U.S. households will include at least one mobility-challenged older adult, according to a December report from Harvard University’s Joint Center for Housing Studies."
The article discusses a list of items to be considered so that the home is accessible, including a ramp into the home, wider doors, turning radius, removal of under the sink cabinets, showers without curbs, and more.
Our good friend, a true expert on international perspectives on elder law, Professor Kate Mewhinney, is offering her course on Comparative Law and Aging in London this summer. Here are the details for the 3 credit course, part of a summer program that begins May 29, 2017:
This course examines how countries address what has been called the “silver tsunami” – the rapidly aging demographic. Through a comparative and international analysis students will learn how different legal systems address similar challenges brought on by increased longevity and fewer births. The course allows us to compare legal approaches to such issues as retirement ages, pensions and Social Security, appointment of financial surrogates, employment discrimination, filial responsibility and health care policies on long-term care and end-of-life options. The focus will be on the U.S., U.K. and major European countries, as well as Japan, the European Union, and China. There are no prerequisites. Students will be graded on class participation, a quiz on fundamentals, and a short research paper to be turned in within a month of the course end.
Tuesday, February 14, 2017
We reported previously that DC had passed an aid-in-dying bill but that there were those in Congress who expressed an intent to overturn it. But it's not just the DC scenario that has advocates concerned. Kaiser Health News ran an article, Aid-In-Dying Advocates, Disheartened By Supreme Court Pick, Brace For New Fight. The article, part of KHN's morning briefing, summaries articles from other publications about Judge Gorsuch's book and his position on aid-in-dying. Click here to access those articles.
While we're on the subject, also check out this article from KHN on Aid-in-Dying Laws Don’t Guarantee That Patients Can Choose To Die, discussing patient access in those states with aid-in-dying laws (we'd previously discussed this in an article from the Denver Post).